Saturday, February 28, 2009

Blogging, Defamation and SLAPP cases

The recent refusal of the Supreme Court to come to the aid of D.Ajith, facing harassment from Shiv Sena which has filed a criminal complaint against him alleging criminal intimidation and outraging religious feelings, has stirred the blogger community. (See Bloggers can be nailed for views). The case comes close on the heels of the recent amendment of the I.T.Act, even though the FIR against Ajith was registered at Thane Police Station in August 2008, prior to the amendment.

According to the recent amendment of I.T.Act, as explained in this Manoj Mitta's story, an intermediary or a host on the internet is not criminally liable for the comments posted by others, if the intermediary allowed the alleged comment to be expressed unintentionally or failed to remove it from the site, after it is pointed out.

Ajith was the host of the community site which he created on Orcut against Shiv Sena, and the members of the community were free to express their views. Ajith argued that his was a community site, and the contents were meant only for members. The Supreme Court did not get into the merits of his contentions, before rejecting his petition praying quashing of the FIR against him. The High Court had granted him anticipatory bail. Bloggers united against the SC's refusal to come to Ajith's rescue.

In this post, Lawrence Liang is unhappy with the Chief Justice for declining relief to Ajith on the understanding that Shiv Sena alleged defamation against Ajith. The Sena did not allege criminal defamation, but alleged criminal intimidation and outraging religious feelings. One doesn't know whether Liang's conclusions will be different if he knew that the complaint pertained to S.506 and 295A of IPC. Still, Liang's explanation of the law on defamation, and his comparison of the CJI's view to that of Anatole France’s will be read with interest. His conclusion, in any case, is relevant:

"So rather than seeing this as an issue of the privilege of bloggers v. newspapers, it might make sense to locate the history of criminal defamation within the larger context of free speech as it affects different kinds of practitioners. And it might make sense for bloggers to also get a little organized in their responses to censorship of bloggers, because this is indeed one of those cases where an attack on one will eventually be an attack on all."
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